VICTORY ARRIVED by speakerphone on Friday, May 9.
It was 4:58 pm, and after an afternoon of beers and bundt cake, gay rights advocates at Oregon United for Marriage (OUM) gathered around someone's iPhone at campaign headquarters. A voice on the line had news—tidings from a just-issued press release that would dictate the future of Oregon's gay marriage fight. "We have resolved to suspend Initiative Petition 52 [IP52]."
The room erupted. The largest looming threat to gay rights in Oregon was dead—at least for the time being.
Someone opened a bottle of red wine. Someone else sent for hamburgers. By 6:20 pm, cheap champagne buzzed in plastic flutes, and tears rolled.
"We weren't planning to win today," OUM press secretary Peter Zuckerman said, "but we'll take it."
Oregon's constitution still bans gay marriage, but it's reasonable to expect that will soon change. What advocates won on May 9 is potentially more significant. Following months of legal wrangling and persistent pressure, IP52—Oregon's campaign to allow discrimination against gay couples—decided not to attempt a vote.
Advocates see it as a banner victory on a fast-emerging new front in the marriage equality culture war. All over the country, proposals are cropping up to allow business owners to refuse services to gay couples, citing religious beliefs. In every case—a recent legislative train wreck in Arizona, for example—those attempts have come from state lawmakers.
But in Oregon, the newly defunct Protect Religious Freedom Initiative—IP52—came from the people. It was filed in November by an Oregon Family Council offshoot calling itself Friends of Religious Freedom, and it had a single purpose: to allow Oregonians, and Oregon companies, to refuse to "participate" in gay weddings. Polling suggested its lofty language about personal freedom and beliefs resonated with voters at least as much as arguments against discrimination.
If IP52 had made the November ballot, gay marriage advocates believe it might have inspired a slew of copycats in other states. Even worse, they say, it might have passed.
But the initiative met a wall of outrage. OUM put together a competing campaign—Oregon United Against Discrimination—and gathered wide-ranging support. When the Oregon Supreme Court, crucially, approved ballot language that undercut the rhetoric and labeled the initiative for what it was—"discrimination"—Friends of Religious Freedom suspended the campaign, promising a lawsuit.
Now, OUM hopes Oregon's sent a message: These fights can be won.
"Our being able to stop this here has got to be really good news across the country," says Mike Marshall, the decorated campaign manager for OUM, minutes after hearing the news. "It's a very big victory."
The Protect Religious Freedom Initiative was drawn up in a Lake Oswego law office. But it might as well have been baked in an East Multnomah County kitchen.
In early 2013, a Gresham bakery called Sweet Cakes by Melissa drew local and national heat when its owners declined to bake a wedding cake for a local lesbian couple, citing religious beliefs. According to a formal complaint filed with the state, a co-owner called the couple "abominations unto the Lord." One of the women started to cry.
By the time the Oregon Bureau of Labor and Industries determined Sweet Cakes by Melissa violated the lesbian couple's civil rights this past January (a development Fox News complained "really takes the cake"), Protect Religious Freedom Initiative had already emerged, the 52nd initiative petition filed for the November election.
The words used by IP52's supporters sounded great. "Religious freedom upholds stability in a diverse society," Friends of Religious Freedom trumpeted in a press release. "It is a fundamental human right and is the right to express, think, and act upon what you deeply believe."
But the upshot was as ugly as the scene described in the Sweet Cakes complaint. IP52 would have allowed people, businesses, and corporations to deny services that contribute to same-sex marriages, civil unions, or domestic partnership ceremonies "if doing so would violate a person's deeply held religious beliefs."
Shawn Lindsay, the Lake Oswego attorney who helped draft the initiative petition, says the Sweet Cakes case was only one instance of increasing discrimination against people of faith. A wedding photographer in New Mexico has also faced penalties for turning down a same-sex couple. A Washington florist, too.
"I think it's just come to a head," Lindsay said days before the initiative's suspension.
Under existing Oregon law, "bona fide" churches and religious institutions (including schools, hospitals, and camps) are allowed to discriminate on the basis of sexual orientation when hiring or granting use of their facilities. The Protect Religious Freedom Initiative would have opened up the right to discriminate to everyone, at least where wedding and civil union ceremonies were concerned.
"Religious institutions and clergy are being treated different than individuals of faith," Lindsay said. "A Jewish violinist, a Christian harpist, a Muslim pianist who provide their services for a fee and do not want to participate in that same-sex marriage—they are not protected. Where's the concern for those people?"
That sentiment has cropped up throughout the country. Most visibly, Arizona lawmakers in February passed legislation that would have given business owners cover to refuse customers—gays included—on the basis of religion. As the bill made its way to the desk of Arizona Governor Jan Brewer, conservatives and the religious right cheered.
But the opposition proved stronger. Companies like Apple, Marriott, and Delta Airlines voiced their disdain. Organizations threatened to cancel their Arizona-based conferences. Even the Super Bowl, slated to take place in Glendale in 2015, was called into question.
Adding to the outcry, both of Arizona's Republican senators, John McCain and Jeff Flake, publicly opposed the law. Sensing potential political and economic catastrophe, Brewer vetoed the bill.
Other states are considering similar legislation, but the ballot measure approach, at least this year, was unique to Oregon.
Marshall, the OUM campaign manager, had been on the job mere days when IP52 was announced. He'd taken a job to win gay couples the right to marry, and suddenly faced a hydra of intolerance.
"Within two weeks [of getting the job] they said I would be running two campaigns," he says. "It wasn't even part of the conversation when I was being recruited."
There was good news, though.
Back when OUM began collecting signatures in February 2013, only one path existed for winning gay marriage in Oregon. Advocates would need to pass a statewide vote to reverse Measure 36, the 2004 provision that defined Oregon marriages as between one man and one woman. But in June 2013, a decision by the US Supreme Court opened up another route: Measure 36 could be challenged in court.
While OUM busied itself collecting enough signatures to put a gay marriage measure on the ballot this November, it watched a pair of legal challenges make their way through federal court. By February, those challenges looked like a sure bet, as Oregon Attorney General Ellen Rosenblum announced she wouldn't defend Measure 36.
That freed up OUM to focus on strategies to fight the discrimination initiative. The group announced the Oregon United Against Discrimination campaign this month, and aimed to kill the initiative before it got going.
"Our goal was to throw up five walls of opposition and to launch them right about now," Marshall said on May 9.
The campaign worked behind the scenes to win backing from communities of color, Republicans, faith-based organizations, and newspaper editorial boards. But it had only begun to unfurl the strategy when IP52's backers pulled out.
Two of the state's newspapers—the Oregonian and the East Oregonian in Pendleton—criticized the Protect Religious Freedom Initiative. And on the morning of May 9, local companies and business boosters appeared in a downtown press conference, announcing that more than 160 companies, including Nike, Columbia Sportswear, and Google, were against IP52.
More weighty than newspaper articles or press conferences was the Oregon Supreme Court. On May 8, the court approved ballot language for the initiative—the verbiage Oregonians would read while deciding how to vote. The ballot title included the word "discrimination" in five places. Lindsay, the initiative's attorney, had argued that word sent a dire message—that it was "politically charged and emotionally laden"—but to no effect.
A little more than 24 hours after the court's decision, the Friends of Religious Freedom suspended its campaign. Still, OUM's Marshall resisted wholly crediting the ruling with IP52's demise.
"I would say the court is a big part of it," he said, "but had we not done anything and they got in this position, they would have been tempted to move forward."
Minutes later, Marshall was in the other room, leaving a voicemail for someone at Nike: "It was your press conference today that obviously just scared the shit out of them."
Oregon, it turns out, boasts a rather terrible distinction, nationally. According to George T. Nicola—the self-appointed chronicler of the state's LGBTQ movement—Oregon voters have seen something like 35 anti-gay ballot measures since the late 1970s.
The so-called "religious freedom" measure would have been number 36.
"It's extremely unlikely another state has had as many," Nicola says.
Nicola's tally includes a handful of well-known statewide measures and a couple dozen lesser-known local ones. It starts with a 1978 referendum in Eugene that overturned a 1977 law banning discrimination based on sexual orientation. It ends in 2004, with the statewide Measure 36.
Along the way, it wraps in 1992's unsuccessful Measure 9, in which "homosexuality" was equated with pedophilia, sadism, and masochism—all behaviors not to be promoted by the government. (Nicola says at least 29 Oregon cities or counties tried to ape Measure 9 in the two years after its defeat, and many of them were successful.)
"We have faced many of these measures," Nicola says. "They may not have claimed it was from religious basis, but many came from backgrounds where religion motivated them."
But there's good evidence things have turned around. By Nicola's accounting, IP52's death marks the fourth time since Measure 36 passed that groups have failed to get an anti-gay measure on the ballot.
"Increasingly we have acceptance throughout the country," he says. "People are beginning to realize we're not just this bizarre abstract. We're their friends, their family, their coworkers, their neighbors. If we're being attacked as a group, that now means someone they love is being attacked. That's a big thing."
Without the looming religious freedom initiative, the future of gay marriage in Oregon seems clearer than it's been in a decade.
Lawsuits challenging the 10-year-old ban on same-sex marriage, amid a favorable wave of court rulings in other states, could bring marriage equality to Oregon as soon as this spring.
If that happens—if US District Judge Michael McShane rules before the July 3 deadline to submit signatures for the ballot—Marshall says the marriage campaign won't push a gay marriage measure this fall.
(A statewide vote, by the way, stands a strong chance. A recent poll commissioned by Oregon Public Broadcasting found 58 percent of respondents support overturning Measure 36.)
But Marshall told the Mercury something interesting during a recent interview. Even if McShane doesn't rule in time for the deadline, the campaign might still decide to stand down. So long as it looks like McShane will rule sometime soon after.
"The issue will be why he's not made a decision by July 3," Marshall says.
In recent weeks, what appeared to be a surefire court victory for the state's gay couples became less certain. A renowned foe of marriage equality, the National Organization for Marriage (NOM), has muddied Oregon's legal waters—filing an 11th-hour bid to defend the state's gay marriage ban.
According to NOM Chairman John Eastman, Oregon Attorney General Rosenblum committed a grave error in February, when she announced her office wouldn't defend the gay marriage ban in court. Then in March, Rosenblum filed a lengthy brief excoriating the ban. Given a 2013 US Supreme Court ruling on the federal Defense of Marriage Act, she argued, Oregon's law can't withstand serious legal scrutiny.
"The attorney general not only declined to defend, but affirmatively attacked, the position of her client," Eastman tells the Mercury.
NOM argues it should be granted standing as a party in the case, saying it represents "a county clerk, a wedding services provider, and an Oregon voter who cast a vote in the November 2004 election in support of Measure 36." The organization does not plan to reveal those people's identities. It says they're afraid Oregonians will mistreat them.
Despite a fast-changing tide—judges have overturned gay marriage bans in six states, including a brand new ruling out of Arkansas—Eastman says his organization's involvement in Oregon is important. Even if McShane, who is openly gay, invalidates Measure 36, Eastman argues NOM may be able to ride an appeal to the Supreme Court.
The organization is scheduled to make its case to McShane on May 14. If it's granted standing, NOM would have power to draw out the lawsuit, but advocates don't think it will change the eventual outcome.
"I'm confident the judge is going to make the right decision," Marshall says. "Why would he decide any different than anybody else?"
But who knows, right?
If there's one thing gay activists have learned over the years, it's that you can't tell what's coming next.
Look at Robin Castro, a 59-year-old Portlander who's volunteered 30 hours a week for the Oregon United for Marriage campaign—and a multitude of fights before that.
In March 2004, when Multnomah County briefly issued marriage licenses to same-sex couples, Castro and his longtime partner got married.
"It was an amazing feeling," he said, sipping a glass of wine at OUM headquarters on May 9.
But it turned out Multnomah County didn't have legal authority to marry same-sex couples. And the county's attempt lit the fuse on Measure 36. Mere months after his marriage, Castro watched as fellow Oregonians voted to ensure he'd never again be married in the state.
The death of IP52 could be similar. Friends of Religious Freedom might have given up the ballot measure, but they've also promised to file a lawsuit on behalf of people who are "currently being coerced into violating their faiths."
Everyone at OUM is exceedingly curious. They're also not surprised.
"How long have you been gay?" Castro asked. "I have for a long time. We will always have something to fight.
"As long as I breathe, I will be there for that."
